A recent Employment Appeal Tribunal (EAT) case considered the "likelihood of success" test in interim relief cases.

What is Interim Relief?

Interim relief is where an order is made for a Claimant's employment to continue pending the final hearing of that Claimant's unfair dismissal claim. Interim relief will be granted if the Employment Tribunal decides that the employee is likely to establish that the reason for their dismissal was a prohibited reason e.g. they were dismissed because of union membership or whistleblowing. The burden is on the dismissed employee to prove that this is likely.

What are the facts of the case?

In the recent EAT case Hancock v Ter-Berg it was found that the burden to prove that a claim was likely to succeed was not limited to whether the reason for the dismissal was a prohibited reason. The test will, in fact, apply to all elements of the claim that the Claimant has to prove.

In Hancock the Claimant brought an unfair dismissal claim on the grounds that the dismissal was automatically unfair as he had made a protected disclosure. He made an application for interim relief. The Respondent asked for the interim relief hearing to be postponed on the grounds that it disputed the Claimant's employment status and wanted a separate hearing to determine that issue before the interim hearing took place. This request was rejected by the Tribunal, which held that the determination of whether the claim was likely to succeed at the final hearing included considering whether it was likely the Claimant would establish his status as an employee. The Tribunal would look at all aspects of the Claimant's claim when making a determination in relation to the interim relief application

What was the EAT's reasoning?

The EAT found that the provision which allowed the Tribunal to make an order for interim relief (section 128 of the Employment Rights Act 1996) did not preclude the Tribunal from having regard to the merits of other elements of the claim aside from consideration of the reason for the dismissal. In fact, if the Tribunal did not have regard to the Claimant's prospects of succeeding in relation to all aspects of his claim, the Tribunal could not possibly be considering the likely outcome of the claim itself. The EAT also assessed the practicalities of a separate hearing. It concluded that a hearing to determine employee status would require disclosure, witness statements and subsequent questioning and cross-examination. Such a hearing would result in substantial delays and therefore undermine the very nature of and reason behind the interim relief process (which is intended to provide swift interim protection).

What can employers take from this decision?

This case reiterates the essence of interim relief – protection of the status quo pending a final hearing, subject to the applicant being able to establish that their claim is likely to succeed. While instances of interim relief being granted are relatively rare, this is a reminder to employers of the possibility that a dismissed employee may be reinstated in their place of work either in their former job or in a new role on no less favourable terms pending a final hearing. This can clearly be a costly situation for an employer, particularly in cases that do not reach a hearing for a year or more.

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